ML102780045

NRC Staff'S Answer to Pilgrim Watch Motion Regarding ASLB Refusal to Respond to Pilgrim Watch'S Motion for Clarification

ML102780045
Person / Time
Site:	Pilgrim
Issue date:	10/04/2010
From:	Harris B NRC/OGC
To:	NRC/OCM
SECY/RAS
References
50-293-LR, ASLBP 06-848-02-LR, RAS J-279
Download: ML102780045 (12)

Text

October 4, 2010 UlVlTED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

1 Entergy Nuclear Generation Co, and 1 Entergy Nuclear Operations, Inc. ) Docket No. 50-293-LR 1

1 (Pilgrim Nuclear Power Station) 1 NRC STAFF'S ANSWER TO PILGRIM WATCH MOTION REGARDING ASLB REFUSAL TO RESPOND TO PILGRIM WATCH'S MOTION FOR CLARIFICATION INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c) and 2.341(f)(2), the Staff of the U.S. Nuclear Regulatory Commission ("Staff') hereby answers Pilgrim Watch's ("PW") "Motion Regarding ASLB Refusal to Respond to Pilgrim Watch's Motion for Clarification ASLB Order (Sept. 2, 2010)" ("PW's Motion") filed on September 22, 2010.' As set forth below, PW's Motion asks the Commission to review the Atomic Safety and Licensing Board's ("Board") denial in part of PW's "Motion for Clarification ASLB Order (Sept. 2, 2010)" ("PW's Motion for Clarification"). The Board and prior Commission decisions have addressed PW's questions. Furthermore, PW's Motion does not establish that it will be irreparably harmed by the Board's denial decision and does not show that the proceeding will be affected in a pervasive or unusual manner. Thus, PW's Motion should be denied.

1 PW's Motion does not indicate under what regulatory authority the motion is filed. Because PW asks the Commission to review the Board's decision to grant in part and deny in part PW's Motion for Clarification ASLB Order (Sept. 2, 2010), the Staff has chosen to respond to it under the regulations regarding petitions for interlocutory review and the regulations governing motions.

PROCEDURAL HISTORY This proceeding concerns the application by Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (collectively "Entergy") to renew the operating license for the Pilgrim Nuclear Power Station ( " ~ i l ~ r i m " ) .Pertinent

' to PW's Motion, on March 26, 2010, the Commission remanded a portion of Contention 3 for additional proceedings before the ~ o a r d . ~

Subsequently, the Commission denied PW's April 5, 2010 Motion for Reconsideration. On September 2, 2010, the Board issued an order setting a scheduling conference ("Board's Scheduling Order") and setting out the scope of the hearing on remanded Contention 3.4 In response to the Board's Scheduling Order, PW filed "Pilgrim Watch Motion for Clarification ASLB Order (Sept. 2, 2010) ("PW's Motion for Clarification") on September 9, 2010. The scheduling conference occurred on September 15, 201o . ~During the scheduling conference, the Board informed PW that it would not be responding to the PW's Motion for Clarification other than to grant the request to bifurcate the issue of meteorological modeling from the economic costs and evacuation timing for hearing.= During the scheduling telephone conference, however, the Board provided responses to each issue raised by PW in its Motion for Clarification.

2 The case's procedural history has been repeated in many of the recent filings and the Commission's orders. See, e.g., Entergy IVuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CI-1-10-1 I,71 NRC -, (Mar. 26, 2010) (slip op. at 3-1 1).

Id. at 39.

Order (Scheduling Telephone Conference), slip op. at 1-2 A transcript of the scheduling conference is available through the Agency-wide Document Management System ("ADAMS"). (ADAMS Accession No. ML102650228).

Transcript ("Tr.") at p. 674 In. 10 - p. 675 In. 18.

On September 22, 2010, PW filed its motion requesting that the "Commission . . . order the [Board] to respond to Pilgrim Watch's September 9, 2010 Motion for Clarification . . . or ...

respond to the questions raised by the ~ o t i o n . " ~

DISCUSSION Although PW's Motion is framed as a request for the Commission to order the Board to respond PW's Motion for Clarification, it is essentially a peti'tion for interlocutory review from the Board's partial denial of the Motion for Clarification. PW asserts that the Board would not respond to PW's Motion for ~larification.' But the Board actually granted part of PW's request, namely bifurcating the proceeding into two separate hearingsg The Board, during the scheduling conference, repeatedly clarified the issues that PW would be allowed to present during each hearing. As the Board explained to PW, the first hearing on meteorological modeling would concentrate on whether the use of different meteorological inputs and alternative models would result in identifying newly cost-beneficial severe accident mitigation alternatives S SAM AS").'^ Any issues related to PW's assertions, as admitted by the Board, regarding economic costs and evacuation timing would be reserved for the second hearing, if it became necessary." In light of the significant explanation provided to PW by the Board, PW's Motion to request that the Commission respond to its clarification positions or alternatively order the Board is unnecessary and PW's Motion should denied. In the alternative, if PW's Motion 7

PW's Motion at 1.

8 Id. at 2 .

9 Tr. at p. 674 Ins. 3-9.

10 See Tr. at p. 674 Ins. 10-16, p. 675 Ins. 2- 8, p. 695 Ins. 13-19, p. 706 In. 8 - p. 708 In. 20, p.

709 In. 21 - p. 714 In. 4, and p. 71 5 Ins. 1- 6.

Id.

asks that the Commission take interlocutory review of the Board's partial denial of the Motion for Clarification, the Commission should deny the motion as PW's Motion does not meet the 12 standards for granting interlocutory review.

I. The Board Fully Addressed PW's Motion for Clarification PW asserts that the Board refused to respond to the Motion for Clarification, but the record shows that the Board responded to each issue raised by PW. PW has chosen to interpret the Board's denial of portions of their motion as a refusal to respond and ignored the portions of the motion that the Board granted. PW's Motion for Clarification requested that the Board clarify four issues: (I) will the Board consider issues related to the SAMA cost-benefit analysis if it finds the meteorological modeling deficiencies that call the analysis' conclusion into question, (2) what issues are open for adjudication if the Board finds that the meteorological modeling in the SAMA analysis is deficient, (3) will the Board consider evidence relating to the NRC practice of averaging consequences, and (4) will the hearing be bifurcated to address meteorological modeling deficiencies from the effect of those deficiencies.

The Board's response during the scheduling conference addressed each of PW's four concerns. First, the Board stated that it would consider issues related to the evacuation timing and economic costs, only if it determined that the meteorological modeling was deficient.13 With regard to the meteorological modeling, the Board stated:

In any event, the point I'm trying to make here is the part of the analysis that looks at how the plume would actually work, that's what the Commission is directing us to pay most attention to as the primary issue.. .. [W]e will be looking at whether that 12 During the scheduling telephone conference, the Board did advise PW that its recourse for the denial of the Motion for Clarification was to file a motion with the Commission. Tr. at p. 674 In. 8 - p. 675 In. 18.

13 Tr. p. 706 In. 8 - p. 708 In. 18.

meteorological modeling is adequate and reasonable to satisfy NEPA and whether accounting only for those meteorological patterns and issues of concern that you've raised relating to the plume model now could credibly alter the Pilgrim SAMA analysis conclusions on which SAMAs are cost beneficial to implement.14 Similarly, the Board was equally clear on the issues that could be challenged if PW successfully challenged the adequacy of the meteorological modeling. The Board stated:

[I]f we were to rule in your favor on that first issue [meteorological modeling], . . . then there would be a second part of the proceeding at which point you would then introduce your evidence on the evacuation inputs and the economic cost issues including tourism, lost business, [and] economic infrastructure. I think basically are the ones we admitted as part of Contention 3.15 Thus, the Board did respond to PW's first two issues.

Second, the Board established a briefing schedule to determine whether the use of mean consequences was raised in a timely manner.16 The Board ordered initial and reply briefs on the mean consequences' timeliness issue for October 1 and 8, respectively." If after the briefing the Board determines that the issue of mean consequences was raised in a timely manner, the Board stated that it would be addressed during the initial hearing on the remanded contention. Specifically, the Board asked PW whether you favor getting a separate ruling [on the adequacy of using mean consequences under NEPA] from the Board or whether you would go along with the staff and the Applicant that you could handle your presentation of evidence as including - on 14 Tr. p. 707 Ins. 5-18.

15 Tr. p. 708 Ins. 1-10.

Tr. p. 723 In. 22 - p. 724 In. 4.

" Id.

18 Tr. p. 695 In. 20 - p. 696 In. 22.

the meteorological modeling issue, including how that might be affected by the averaging process or some alternate process?lg And PW responded by stating that "I believe we could do that under your proposed schedu~e[]."'~

Finally, the Board bifurcated the issue of meteorological modeling deficiencies from the economic costs and evacuation timing i ~ s u e s . ' ~ The Board, in bifurcating the proceeding, stated:

[Tlhe first thing we want to indicate to you all is that we will, as

[PW] asked and suggested as well, we will bifurcate the initial issue relating to the meteorological questions from any other potential issues in the case."

Since the Board has, in fact, responded to each of the issues raised by PW's Motion for Clarification, PW's Motion should be denied.

II. Legal Standard for Interlocutory Review The regulation at 10 C.F.R. § 2.341(f)(2) provides that the Commission may grant interlocutory review at the request of a party if the issue for which the party seeks review "threatens the party adversely . . . with immediate and serious irreparable impact, which as a practical matter, could not be alleviated through a petition for review of the . . . final decision; or

. . . affects the basic structure of the proceeding in a pervasive or unusual manner." 10 CFR § 2.341(f)(2)( - i ) Interlocutory review is an extraordinary remedy limited to Board orders that fundamentally alter the conduct and scope of the proceeding. As such, the Commission will l9 Tr. p. 696 Ins. 5-1 1 20 Tr. p. 696 Ins. 12-1 3.

21 Tr. p.674 Ins. 2-16.

22 Tr. p. 674 Ins. 2-9. As previously discussed above, the Board also added the dispute regarding mean consequences to the initial proceeding should PW demonstrate that it was raised in a timely manner.

only undertake interlocutory review in the most compelling circumstances. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-09-06, 69 NRC 128, 133 (2009); Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-11, 40 NRC 55, 61 (1994).

A. PW Has Not Suffered Immediate and Irreparable Harm PW's Motion does not assert that immediate and irreparable harm would result from the Board's decision. PW asserts that the Board did not respond to its Motion for Clarification. But as discussed above, the Board repeatedly engaged in significant discussions regarding the Board's Order. During the scheduling conference and in response to the Board's explanation of the issues to be decided in the first and (potential) second hearing, PW states on several occasions that it understands the Board's explanation but simply does not agree with it.23 Although PW's Motion makes no assertion of immediate and irreparable harm, PW's Motion for Clarification and statements during the scheduling conference implies that if the evidence they seek to have admitted is not admitted, then the Board is unfairly limiting their case and going to a hearing under the Board's Order would be a waste of resources. PW states that "[it] may well be better advised to plan for appeal rather than to expend time and resources on a fool's errand."24 Finally, PW states that the Board's Order and explanation would effectively preclude them from being able to make their case by limiting the issues PW is allowed to present as evidence. PW describes the situation simply as "boxing the Petitioner in a corner-putting us in a Catch-22 ~ i t u a t i o n . "Again,

~ ~ PW dismisses the need for a hearing unless the Applicant is 23 Tr. at p. 713 In. 11 - p. 714 In. 4; p. 719 Ins. 15-22; See also Tr. at p 708 Ins. 18-20.

24 PW's Motion for Clarification at 18.

25 PW'S Motion at 4.

required to consider the "real costs of off-site consequence[s]" and "use realistic consequence values in their SAMA a n a ~ y s i s . " ~ ~

Although PW did not raise any harm in its motion to the Board, PW did assert three issues to the Board including ( I ) an overly limited scope to their contention, (2) an expenditure of monetary resources preparing for and participating in a proceeding, and (3) the time that they believe will be wasted by conducting the hearing under the contention. The mere commitment of resources to a hearing does not justify in itself an adequate basis for interlocutory review.

See Sequoyah, CLI-94-11, 40 NRC at 61. See also Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), CLI-04-31, 60 IVRC 461, 466 (2004). 'The decision to request a hearing and its associated burden on the intervenor, resides with the intervenor. Thus, PW's Motion should be denied B. The Board's Partial Denial Will Not Affect the Proceedinq in a Pervasive or Unusual Manner PW's Motion also does not assert that the Board's decision would affect the proceeding in a pervasive or unusual manner. Even examining PW's Motion for Clarification and PW's statements during the scheduling conference, it appears that PW's only complaint regarding the proceeding is a belief that scope of the contention as admitted by the Board and remanded by the Commission is too narrow. PW argues that narrowness of the admitted contention is such that the hearing on the matter would be pointless and merely delay PW's intention to ask for the Comrr~issionto review the Board's The Commission's precedent has consistently denied interlocutory review based on the admission or denial of a particular contention, or 26 Id. at 9 (emphasis in original).

27 See PW's Motion at 3; PW's Motion for Clarification at 18.

disputes regarding the scope of an admitted contenti~n.~'The Commission's decisions to grant interlocutory review based on actions that would affect a proceeding in a pervasive or unusual manner are generally limited, to narrow issues regarding the jurisdiction and authority of a Here, unlike the Commission's previous cases granting interlocutory review, the Board's Order and its explanation during the scheduling conference established the issues to be resolved during an initial hearing on the effect of the meteorological modeling3' on the SAMA analysis conclusions and a second hearing, if necessary, on the effects of the economic costs and evacuation modeling on the SAMA analysis c o n c ~ u s i o n . ~PW ~ seems to agree that issues for hearing should be bif~rcated.~' Thus, PW's clarification position concerns the same issues that it has previously raised to the Commission in several filings that have been repeatedly 28 Indian Point, CLI-09-06, 69 NRC at 133 (citing Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-05-21, 62 NRC 538, 539 (2005) and Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-94-2, 39 NRC 91, 93 - 94 (1994).

29 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Facility), CLI-98-7, 47 NRC 307, 312 (1998) (establishing a separate second board to handle physical security); Safety Light Corp.

(Bloomsburg Site Decontamination and License Renewal Denials), Cl-1-92-73, 36 NRC 79 (1992)

(consolidating formal Subpart G and Informal Subpart L Proceedings); Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-7, 55 NRC 205, 21 4 (2002) (creating a two step process for addressing construction authority separately from operating authority). The Commission reasoned that if the two step process was unlawful there would be no basis for the Board to go forward with a proceeding structured in that way. Id.

30 PW states that during the initial hearing, its burden of going forward requires that it only demonstrate that using an alternative meteorological model would result in a significant change in either the "(i) the size and location of the affected area and (ii) the population dose within that area." PW argues that Judge Abramson's statements regarding the alternative meteorological modeling requires a "significant difference in the SAMA's cost-benefit outcome" PW's Motion at 3 (emphasis in original).

Finally, PW complains that the Board will not entertain issues regarding the costs during hearing on whether an alternative meteorological model would have a material effect on the SAMA analysis outcome.

Id. But, compare PW's Motion for Clarification at 17-18 (stating that reserving PW's issues regarding economic costs for a second hearing, if necessary, would alleviate some of the burden of preparing testimony and evidence on issues that may never be at issue).

3' Board's Scheduling Order at 2-3; Tr. at p. 674 In. 10 - p. 675 In. 18.

32 Tr, at p. 716 Ins. 3-1 3.

denied.33 PW again asserts that it should be allowed to present evidence outside the scope of the admitted and partially remanded contention, including, for example, elevated clean-up costs and higher contamination remediation standards.34 None of the points raised by PW in its dispute over the proper scope of the contention are sufficient to support interlocutory review.

Thus, PW's Motion should be dismissed.

CONCLUSION The Board fully addressed PW's clarification request. Disagreement with the outcome of the Board and Commission's prior decisions on the scope of the contention does not justify continuing to question those decisions. Moreover, PW's Motion does not assert and PW has not shown that immediate and irreparable harm has occurred or that the proceeding has been affected in a pervasive or unusual manner. Therefore, the Commission should deny PW's Motion and affirm the Board's denial in part of PW's Motion for Clarification.

4@-d): rian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop 0-15D21 Washington, DC 20555-0001 (301) 415-1392 brian.harris@nrc.gov 33 See, e.g., Pilgrim Watch Motion for Reconsideration of CLI-10-11 (April 5, 2010); Pilgrim Watch Motion for Clarification ASLB Order (Sept. 2, 2010) (Sept. 9, 2010) at 6-7; PW's Motion.

34 PW1sMotion for Clarification at 15-1 6.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMlSSSlON In the Matter of )

Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. Docket No. 50-293-LR

)

(Pilgrim Nuclear Power Station)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "NRC Staff's Answer to Pilgrim Watch Motion Regarding ASLB Refusal to Respond to Pilgrim Watch's Motion for Clarification" dated October 4, 2010, in the above-captioned proceeding have been served on the following by electronic mail and by deposit in the U.S. Nuclear Regulatory Commission's internal mail system, or, as indicated by an asterisk (*), by electronic mail and by deposit in the U.S. Mail system this 4th day of October, 2010:

Administrative Judge Administrative Judge Richard F. Cole Paul B. Abramson Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: Richard.Cole@nrc.~ov E-mail: Paul.Abramson~nrc.gov Administrative Judge Office of Commission Appellate Ann Marshall Young, Chair Adjudication Atomic Safety and Licensing Board Panel Mail Stop: 0-16G4 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.aov E-mail: Ann.Youna@nrc.qov

Atomic Safety and Licensing Board Office of the Secretary Mail Stop: T-3F23 Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: 0-16G4 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission (VIA INTERNAL MAIL ONLY) Washington, DC 20555-0001 E-mail: Hearinq.Docket@nrc.~ov Sheila Slocum Hollis* Terence A. Burke, Esq.*

Duane Morris LLP Entergy Nuclear 1667 K Street, NW, Suite 700 1340 Echelon Parkway Washington, DC 20006 Mail Stop: M-ECH-62 E-mail: sshollis@duanemorris.com Jackson, MS 39213 E-mail: tburke@enterqy.com Mary Lampert* David R. Lewis, Esq*.

148 Washington Street Paul A. Gaukler, Esq.

Duxbury, MA 02332 Pillsbury, Winthrop, Shaw, Pittman, LLP E- mail: marv.lampert@comcast.net 2300 N Street, NW Washington, DC 20037-1 137 E-mail: david.lewis@pillsburylaw.com paul.~aukler@pillsburylaw.com Chief Kevin M. Nord* Town Manager*

Fire Chief & Director Duxbury Emergency Town of Plymouth Management Agency 11 Lincoln St.

668 Tremont Street Plymouth, MA 02360 Duxbury, MA 02332 E-mail: marrighi@townhall.plymouth.ma.us E-mail: nord~town.duxburv,ma.us Richard R. MacDonald* Matthew Brock, Esq."

Town Manager Assistant Attorney General, Chief 878 Tremont Street Environmental Protection Division Duxbury, MA 02332 Office of the Attorney General E-mail: macdonald@town.duxbury.ma.us One Ashburton Place, 18th Floor Boston, MA 02108 E-mail: matthew.brock@state.ma.us Counsel for NRC Staff